Casley v Deputy Commissioner of Taxation
[2017] WASCA 196
•20 OCTOBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CASLEY -v- DEPUTY COMMISSIONER OF TAXATION [2017] WASCA 196
CORAM: MURPHY JA
MITCHELL JA
HEARD: 20 OCTOBER 2017
DELIVERED : 20 OCTOBER 2017
FILE NO/S: CACV 74 of 2017
BETWEEN: ARTHUR WAYNE CASLEY
Appellant
AND
DEPUTY COMMISSIONER OF TAXATION
Respondent
FILE NO/S :CACV 75 of 2017
BETWEEN :LEONARD GEORGE CASLEY
Appellant
AND
DEPUTY COMMISSIONER OF TAXATION
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :LE MIERE J
Citation :DEPUTY COMMISSIONER OF TAXATION -v- CASLEY [2017] WASC 161
File No :CIV 3132 of 2016
Catchwords:
Income Taxation law - Appeal against summary judgment ordering the payment of assessed amounts - Whether primary judge erred in failing to find that the appellants' property was an independent sovereign state - Whether the Deputy Commissioner is estopped from denying that the property has seceded - Whether the Deputy Commissioner is estopped from contending that the appellants are residents of Australia for taxation purposes - Whether the primary judge erred in proceeding on the basis of the Commissioner's certificates rather than primary evidence of the facts establishing the appellants’ taxation liability - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
CACV 74 of 2017
Counsel:
Appellant: In person
Respondent: Mr A J Musikanth
Solicitors:
Appellant: In person
Respondent: Australian Government Solicitor
CACV 75 of 2017
Counsel:
Appellant: In person
Respondent: Mr A J Musikanth
Solicitors:
Appellant: In person
Respondent: Australian Government Solicitor
Case(s) referred to in judgment(s):
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Deputy Commissioner of Taxation v Casley [2017] WASC 161
Federal Commissioner of Taxation v Ryan (2000) 201 CLR 109
Federal Commissioner of Taxation v Wade (1951) 84 CLR 105
Saunders v The Public Trustee [2015] WASCA 203
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118
REASONS OF THE COURT: The background to these appeals is set out in the decision of the primary judge.[1] On 16 June 2017, the primary judge granted summary judgment to the Deputy Commissioner of Taxation in two actions brought against the appellants, Leonard Casley and his son Arthur Casley. The actions had been brought by the Commissioner to recover taxation debts said to be owing to the Commonwealth pursuant to certificates issued under various provisions of Commonwealth taxation legislation. Judgment was entered in the sum of $2,770,177.63 against Leonard Casley and in the sum of $242,669.53 against Arthur Casley. Costs and interest were also awarded in favour of the Deputy Commissioner.
[1] Deputy Commissioner of Taxation v Casley [2017] WASC 161.
The appellants now seek to appeal against the judgments entered by the primary judge. The grounds of appeal are the same in each appeal. In substance, they raise three issues.
First, the appellants contend that the primary judge erred in failing to recognise that the appellants' farming property in Northampton is an independent sovereign state which seceded from Australia in 1970, with the result that the appellants are not residents of Australia for taxation purposes.
Secondly, the appellants contend that the Deputy Commissioner is estopped from denying that the Northampton farming property, which the appellants call the 'Principality of Hutt River', has seceded, and from contending that they are residents of Australia for taxation purposes.
Thirdly, the appellants contend that the primary judge erred in proceeding on the basis of the Commissioner's certificates (which the appellants say are factually inaccurate in a number of respects) rather than primary evidence of the facts establishing their taxation liability.
There is no merit to any of these contentions. Nothing in the material relied on by the appellants, which we have read and considered, provides any arguable basis for concluding that Leonard Casley's purported declaration of secession from Australia in 1970 had any legal effect.
The evidence before the primary judge did not arguably establish the factual elements of an estoppel. The appellants seek to rely on previous assessments for earlier taxation periods which classify them as non‑residents of Australia for income tax purposes. The mere issue of such an assessment could not arguably give rise to an estoppel which precludes the Deputy Commissioner from either amending the assessment in accordance with the provisions of the legislation or assessing the appellants' liability to taxation in subsequent periods on a different basis. The documents issued to the appellant by taxation authorities which they produced before the primary judge were:[2]
1.letters from the Deputy Commissioner to Mrs Shirley Casley indicating that an objection to an income tax assessment for the years ending 30 June 1977 and 30 June 1978 were partially allowed to the extent of income from tourism;
2.an income tax assessment for the year ending 30 June 2001 to Arthur Casley, and for the year ended 30 June 2005 to Leonard Casley, indicating that they were deemed to be a 'non‑resident of Australia for income tax purposes'; and
3.correspondence issued in 2015 ‑ 2017 addressed to the appellants at 'Principality of Hutt River'.
None of those documents arguably represent that the Deputy Commissioner will never issue an assessment or amended assessment treating the appellants as residents of Australia for tax purposes.
[2] See the affidavit of Arthur Casley sworn 2 May 2017 at pages 45 ‑ 47, 53 and affidavit of Leonard Casley sworn 24 April 2017 at pages 54 ‑ 56, 61a ‑ 66, 77 ‑ 79, 86 ‑ 88.
In any event, there is no arguable legal basis on which doctrines of estoppel could alter the constitutional status of the Northampton land as part of the Commonwealth of Australia. It may also be noted that the appellants' submissions regarding estoppel fail to confront the difficulties in establishing such an estoppel in the face of the Deputy Commissioner's statutory obligation to assess the appellant's taxation liability in accordance with the applicable Commonwealth legislation.[3]
[3] See Federal Commissioner of Taxation v Wade (1951) 84 CLR 105, 117; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, 510; Federal Commissioner of Taxation v Ryan (2000) 201 CLR 109, 124.
The arguments about the Deputy Commissioner having failed to establish relevant facts do not take account of the evidentiary force given to certificates issued under the provisions referred to at [7] of the primary decision. Those certificates operated either as conclusive proof or prima facie evidence of matters establishing the appellant's taxation liability. The primary judge correctly identified the legal effect of those provisions. To the extent that the certificates merely constituted prima facie evidence of the matters stated, the primary judge correctly concluded that the appellants had failed to adduce any evidence to the contrary.
It is established that summary judgment should be awarded only in the clearest of cases, where one party can demonstrate that the question will certainly be resolved in their favour.[4] In the present case the primary judge correctly found that the appellants had not advanced any arguable defence, and that it was appropriate to enter summary judgment in favour of the Deputy Commissioner.
[4] Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [54] ‑ [55].
In our view, none of the appellants' grounds of appeal have any reasonable prospect of success and both appeals should be dismissed on that basis.
The appellants have also filed applications seeking leave to adduce additional evidence in the appeals. The principles governing the exercise of this court's discretion to receive additional evidence in a civil appeal are well-established.[5] Leave to adduce the additional evidence should be refused on the basis that it is not in the interests of justice to receive the evidence. The evidence is not fresh and there is no significant possibility that the evidence would lead to a different result if admitted.
[5] Saunders v The Public Trustee [2015] WASCA 203 [84] ‑ [90].
For these reasons, at the hearing of this appeal we made the following orders in each appeal:
CACV 75 of 2017 (Appeal by Leonard Casley)
1.The appellant's applications in an appeal filed on 16 August 2017, 13 October 2017 and 17 October 2017 are dismissed.
2.The appeal is dismissed.
3.The appellant pay the respondent's costs of the appeal to be assessed if not agreed.
CACV 74 of 2017 (Appeal by Arthur Casley)
1.The appellant's application in an appeal filed on 16 August 2017 is dismissed.
2.The appeal is dismissed.
3.The appellant pay the respondent's costs of the appeal to be assessed if not agreed.
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